I'm wondering what the answer is - e.g. with respect to this testimony - Meta Whistleblower's Testimony by former facebook employee Sarah Wynn-Williams taking place despite a non-disparagement clause in a severance agreement (not a claim of executive privilege as in the case asked about in an old similar question.)
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There are two ways that one could testify before Congress.
One is voluntarily. This could breach the non-disparagement clause and give rise to civil liability.
The other is pursuant to a subpoena issued by Congress. A subpoena creates a mandatory duty to testify unless a court orders otherwise. In this case, the person subject to the non-disparagement clause would normally have to give prompt notice to the party not to be disparaged, to allow them to attempt to quash the subpoena in court. But, if they failed to quash the subpoena, this compulsory process would override the contract and invalidate it.
One ground to quash a subpoena is an evidentiary privilege, like attorney-client privilege, or executive privilege, or doctor-patient privilege. But a mere non-disparagement clause in a contract does not itself give rise to an evidentiary privilege.
ohwilleke
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No
A contract cannot require illegal activity.
Refusing to testify before Congress is illegal unless there is a legally recognised privilege - the privilege against self-incrimination, legal professional privilege, executive privilege etc.
A contract that purported to prevent such testimony would be void. A well written contract (which we can assume Meta uses) will have a savings clause limiting its operation “to the extent permitted by law”. Since testimony to Congress is permitted (indeed required) by law, the contract does not prevent it.
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You asked:
Can a non-disparagement clause in a severance agreement prevent someone from testifying in a congressional hearing?
If I understand you correctly, you're asking if Meta (or any other NDA enforcer, for that matter) can prevent such a testimony (or in general, any violation of an NDA contract).
No.
The only thing that can prevent testifying in a congressional hearing anyone who's otherwise able to testify is physical force. Anything else may be a deterrent, but the decision is ultimately with the witness.
The repercussions of violating a court order or a contract clause would then be retroactive and subject to adjudication, the results of which would very much depend on the circumstances and the content of the testimony. Whether it's voluntary or compelled, whether it is factual or opinion, etc.
Contract violations are a civil matter and the repercussions are usually limited to damages or performance. But even in cases of criminal law, the legal limitations may not prevent anything. Consider for example perjury. While there's a statute against it (e.g.: 18 USC 1621), it doesn't actually prevent people from lying. It only provides repercussions for doing so.
Given that we know nothing about the actual contract between Meta and the whistleblower, and we know nothing about the contents and the circumstances of the testimony, we can only speculate what the potential repercussions, if any, may be.
